2022 (6) TMI 326 - HC - Customs

Smuggling - Gold - huge quantity of gold was concealed in the compressor of a refrigerator, brought as an unaccompanied luggage - Seeking release of detenues - no apprehension raised at any stage by the sponsoring authority about the likelihood of the detenus to indulge in smuggling in further - certain documents requested, which were needed for making an effective representation, were denied - HELD THAT - There has been reliance made in the detention order regarding the documents mentioned which might have forced the detaining authority to reach the conclusion about the previous smuggling activities and which necessitated the present order of detention. Inspite of a specific request, as seen from Ext. P12 in the above cases, we find copies were not given. In as much as the contents of the above being relied upon and they have not been given despite asking for them, we feel there has been infraction of the right of the detenus to make an effective representation seeking release. The learned counsel for the petitioner is right in stating that the detaining authority ought to have furnished the said materials as their right to make an effective representation has been impaired. The contention of the learned counsel for the respondents that there was no duty to supply the documents to the detenus, cannot be accepted - the nonsupply has vitally affected the right of the detnus under Article 22(5) of the Constitution of India - the detention order is bad for the non-supply of these documents sought for in Ext. P12. The detenus are forthwith set at liberty - Application allowed.

Issues Involved:
1. Legality of the Detention Order
2. Non-Supply of Documents
3. Competence of the Advisory Board
4. Role of Sponsoring Authority in Bail Proceedings
5. Retraction of Statements

Detailed Analysis:

1. Legality of the Detention Order:
The petitioners challenged the detention orders on the grounds that the sponsoring authority did not oppose their bail applications, indicating no necessity for detention. The court held that the roles of the sponsoring and detaining authorities are distinct. The detaining authority must independently arrive at the subjective satisfaction to detain, considering the propensity of the detenus to indulge in future prejudicial activities. The court emphasized that preventive detention is precautionary and does not overlap with prosecution, which can proceed independently.

2. Non-Supply of Documents:
The petitioners argued that the non-supply of certain documents requested under Ext.P12 impaired their right to make an effective representation under Article 22(5) of the Constitution. The court found that the detaining authority had relied on certain documents, including screenshots and WhatsApp messages, which were not provided to the detenus despite specific requests. Citing Supreme Court precedents, the court held that the failure to supply these documents violated the detenus' rights, rendering the detention orders invalid.

3. Competence of the Advisory Board:
The petitioners contended that the detention orders were confirmed by an improperly constituted Advisory Board, different from the one notified in Ext.P9. The court rejected this argument, stating that the change in the Board's composition was due to the retirement of judges and that the new Board was duly constituted with competent members. The court presumed objectivity, fairness, and competence in the Board's consideration of the detenus' cases, finding no prejudice against the detenus.

4. Role of Sponsoring Authority in Bail Proceedings:
The petitioners argued that the sponsoring authority's failure to oppose bail in the Sessions Court indicated no necessity for detention. The court clarified that the lack of opposition was due to the Covid-19 pandemic and the Supreme Court's interim bail directives. The court distinguished this case from Varadharaj v. State of Tamil Nadu, emphasizing that preventive detention is distinct from punitive detention and can be imposed regardless of bail proceedings.

5. Retraction of Statements:
The petitioners claimed that their retracted statements under Section 108 of the Customs Act were not voluntary. The court noted that the detaining authority had considered the retractions and rebuttals in the detention orders. Additionally, fresh statements reaffirming the previous confessions were made by the detenus. The court found no further requirement for the detaining authority to address the retractions beyond what was already done.

Conclusion:
The court quashed the detention orders due to the non-supply of crucial documents, which impaired the detenus' right to make an effective representation. The detenus were ordered to be released immediately unless required in connection with any other case.

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